Definitions

not legal

Legal aspects of transsexualism

Transsexual people are those who establish a permanent identity with the gender opposite to that which they were assigned at birth. As most legal jurisdictions have at least some recognition of the two traditional genders at the exclusion of other categories, this raises many legal issues and aspects of transsexualism. Most of these issues tend to be located in what is generally considered family law, especially the issue of marriage, but also things such as the ability of a transgendered person to benefit from a partner's insurance or social security.

The degree of legal recognition provided to transsexualism varies widely throughout the world. Many countries now extend legal recognition to sex reassignment by permitting a change of gender on the birth certificate. Many transsexual people have their bodies permanently changed by surgical means or semi-permanently changed by hormonal means (see Gender reassignment therapy). In many countries, some of these modifications are required for legal recognition. In a few, the legal aspects are directly tied to health care; i.e. the same bodies or doctors decide whether a person can go ahead, and the subsequent processes automatically incorporate both matters.

The amount to which non-transsexual transgender people can benefit from the legal recognition given to transsexual people varies. In some countries, an explicit medical diagnosis of transsexualism is (at least formally) necessary. In others, a diagnosis of gender identity disorder, or simply the fact that one has established a different gender role, can be sufficient for some or all of the legal recognition available.

Europe

Several countries in Europe give transsexual people the right to at least change their first name. Most also provide a way of changing birth certificates. Several European countries recognize the right of transsexuals to marry in their post-operative sex. France, Germany, Italy, the Netherlands, Poland, Portugal, Romania, Denmark, Finland, Sweden and the United Kingdom all recognize this right.

The situation is different in some eastern European countries. For instance, countries like the Czech Republic have laws governing sex change or, at least, give people the right to change their name and legal documents (Latvia). Other countries like Lithuania do not have any working legislation governing sex change.

Spain

Since June 2006, a new law in Spain allows transsexual people to modify their name and legal gender in all public documents and records on the basis of a personal request, regardless of whether they had genital reassignment surgery or not. However, medical (hormonal) treatment for at least two years is a prerequisite.

Poland

In Polish law there is not any specific institution or act considering gender change, although right to change one's legal gender is generally recognised. Article 189 of Polish Civil Procedure Code allows an individual to ask court to determine his right or legal relations in many contexts, including gender and civil registry records. On the grounds of this provision Polish courts often approve legal claims for modyfing registry records, name and all other public documents. It is practically needed that court should be provided with medical evidences of one's transsexuality.

The first milestone sentence in the case of gender shifting was given by Warsaw's Voivode Court in 1964. Court reasoned that it possible in face of civil procedure and act on civil registry records to change one's gender after the genital reassignment surgery was conduced. In 1983 the Supreme Court ruled that in some cases, when the attributes of newly-formed gender are predominant it is possible to change one's gender even before the genital reassignment surgery.

United Kingdom

Historically in the United Kingdom, transsexual people had succeeded in getting their birth certificates changed and marriages conducted. However, this was not legally tested until the case of Corbett v Corbett in 1970, where Arthur Corbett attempted to annul his marriage to April Ashley on the grounds that transsexuals were not recognised in English law. It was decided that, for the purposes of marriage, a post-operative transsexual was considered to be of the sex they had at birth.

This set the precedent for the coming decades. People who thought they had existing valid marriages turned out not to - and the previous unofficial changing of birth certificates was stopped.

Transsexual people were able to change their names freely; to get passports and driving licences altered; to have their National Insurance details changed; and so forth. A piece of legislation was also introduced to ban discrimination against transsexual people for employment.

In the 1980s and 1990s the pressure group, Press for Change, helped people take several cases to the European Court of Human Rights about this. In Rees vs. United Kingdom, 1986, it was decided that the UK was not violating any human rights; but, that they should keep the situation under review. The UK government did nothing to look at the situation - and in 2002 in the case Goodwin vs. United Kingdom, it was decided that the rights to privacy and family life were being infringed.

In response to its obligation, Parliament passed the Gender Recognition Act 2004, which effectively granted full legal recognition for transsexual people.

In contrast to systems elsewhere in the world, the Gender Recognition process does not require applicants to be post-operative. They need only demonstrate that they have suffered gender dysphoria, and have lived in the 'acquired gender' for two years, and intend to continue doing so until death. There are strict rules governing the requirements for granting of a certificate; more details may be found on the GIRES website

Medical treatment

It has been established by the courts that no National Health Service Health Authority has the right to deny treatment for gender dysphoria as a matter of policy. However, effective access to treatment varies wildly depending upon the policies of the individual Gender Identity Clinics with some taking a more relaxed approach than others. Transsexual people frequently characterise some centres as arrogant and controlling. A minimum requirement of 24 months real life experience, before a surgical referral is permitted, is not uncommon; and many GICs will force patients to transition before they are allowed access to hormone replacement therapy.

A common alternative for some is to seek private treatment; though most private health insurance plans specifically exclude it. Often, people will seek hormone therapy privately and then later seek surgery on the NHS; which, may prove troublesome because the NHS likes to be involved at all stages of the process.

Germany

The "Transsexuellengesetz"

Since 1980, Germany has a law that regulates the change of first names and legal gender. It is called "Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen (Transsexuellengesetz - TSG)" (Law about the change of first name and determination of gender identity in special cases (Transsexual law - TSG)).

In Germany, as in many countries whose law is at least partly based on the Code Napoleon, the first name has to be gender-specific. One can either obtain a change of name alone, and proceed later with a change of legal gender, if possible or desired, or obtain both in a single procedure.

For both, two official expert opinions have to be presented to a court stating that:

  • a medical diagnosis of transsexualism has been made,
  • the person has felt the need of living "according to their desires" for at least three years, and
  • it is "unlikely" that the "feeling of belonging to the other sex/gender" is going to change any more. (German does not differentiate between sex and gender).

The change of name can and almost certainly will be revoked if the person marries and then fathers or gives birth to a child that was conceived after the name change became valid.

For the change of legal gender, it is also required that

  • the person is unmarried,
  • permanently infertile, and
  • "has had surgery through which their outer sexual characteristics are changed to a significant approximation to the appearance of the other sex/gender".

Originally, the law stated that neither change of name nor legal gender were available for people under 25 years of age. This condition has been declared void by the courts, and today there is no minimum age.

The TSG applies only to German citizens; there are exceptions only for non-German citizens with very specific legal status, such as stateless people living legally in Germany.

Unless a person can show that they do not have the money to pay for the procedure, the applicant has to pay the costs for the procedure. The costs for the court itself are about 60-70 Euros, but the expert opinions can range in cost from 0 Euros to several thousand Euros on average around 600 to 1200 Euros.

Several court decisions have further specified several matters. For example, a person with only a name change has the right to be called "Herr" or "Frau" (Mr. or Mrs.) according to their first name, not their legal gender; similarly, documents have to be issued reflecting the actual gender role, not legal gender. Job references, certifications and similar from the time before the change of name have to be reissued with the new name, so effectively there is no way for a new employer to learn about the change of name and/or gender. Also, people with only a name change do not have to divulge their legal gender to employers even if the gender of the employee usually matters in a particular job. (For example a medical assistant to a gynaecologist.)

Criticism of the "Transsexuellengesetz"

In the last couple of years, the TSG has come under intense criticism not only from the trans community, but also some medical caregivers. This criticism is directed against both the way the law is applied, especially concerning the way "expert opinions" are done, and the wording of the law itself.

Particularly the following parts of the TSG are criticised:

  • The mandatory diagnosis of transsexualism, instead of "gender identity disorder" or simply granting at least name changes on the basis of individual need.
  • The fact that (almost) only German citizens can obtain papers reflecting the gender role they live in, resulting in significant problems for people living in Germany who are not German citizens.
  • The need for "expert opinions", see below.
  • The proceedings can take a very long time, especially because of the time that is often needed for the expert opinions, but also because courts are often overloaded. Half a year is a rather fast decision, one year or more is not unusual.
  • People who have only changed their name have a questionable legal status. While most of the time this is perfectly sufficient, there are several problems in specific situations. A person with only a name change ...
    • who is in hospital or prison has no right to be accommodated according to the gender role they live in, but can be housed according to their legal gender;
    • can enter a registered partnership with a person of the same legal gender (since 2001), but can not marry or enter any kind of legally secured partnership with a person of the opposite legal gender;
    • risks their name change when fathering or giving birth to a child.
  • The conditions for a change of legal gender are often considered too high:
    • The requirement to be unmarried means that people who are married and wish to remain so can not obtain a change of legal gender. (How a legal change of gender would affect a registered partnership is currently unknown, since registered partnerships only became available since 2001.)
    • The requirement to be "permanently infertile" is seen as interfering with the right to physical integrity, especially since a simple sterilization is usually not seen as sufficient, but castration is required instead.
    • The requirement for surgery, which is interpreted essentially as a requirement for genital reassignment surgery, is seen as interfering with the right to physical integrity. This is always applied to transwomen, and transmen are only currently exempt because the results are seen as unacceptable. This exemption is regularly challenged by judges.

As has already been mentioned, the "expert opinions" can be very expensive. Some "experts" wish to test everything they can think of, including intelligence and/or every psychiatric disorder they can think of. Also, the sexual history of the clients is of particular interest to some. This results in assessments which are lengthy (several months are not unusual), costly and humiliating.

Many "experts" also consider only those people as transsexual who live in a gender role that the expert considers "appropriate" resulting in problems for example for transwomen who sometimes do not wear skirts or transmen with hair that is considered "too long". Especially lesbian transwomen and gay transmen suffer from problems with these "experts".

Since the courts usually impose the "experts" on the applicants (which is legally at least questionable) there is no way to escape these often expensive, lengthy and humiliating assessments. Not every expert who is asked for an expert opinion however will work according such questionable "guidelines". Since there are many regional differences, there is a certain amount of "trans-tourism"; people (at least officially) moving to the circuit of courts who are known to appoint "liberal" or "reasonable" experts. However, the general problems with "expert opinions" have led to demands to abandon these completely or at least to lower the required number to one and to lower the formal requirement for it. Many of this criticism applies also to "expert opinions", "letters of recommendation" or similar papers regarding medical procedures. The same problems with "experts" are also experienced in all other countries.

In July 2008, a court in Karlsruhe ruled that a transsexual woman who transitioned to female after having been married to a woman for more than 50 years could remain married to her wife and change her legal gender to female. It gave the legislature one year to effect the necessary change in the relevant law. (La Presse)

Legal aspects of medical treatment

Based on several court decisions, some dating back to the late 1970s, medical treatment of transsexualism (and in fact all gender identity disorders) has to be paid by health insurance, which is mandatory in Germany. Like all treatments that have to be paid for by health insurance, "medical necessity" has to be shown in each particular case. In some cases, this can lead to lengthy procedures, although this is not always the case. However, the less "medical necessity" can be shown, the more difficult it gets to get coverage. This is particularly true for surgeries like Facial Feminization Surgery, but also occasionally for more basic matters as the construction of a neo-clitoris.

The regulation of coverage of medical costs is formally completely unrelated to the TSG; in practice, there can be overlaps, for example with expert opinions.

Lithuania

In Lithuania, it is not possible for transsexual people to change gender-related records. Even the ability to change names is limited: it is possible to change from a gender-specific name to a gender-neutral name, but only for unmarried people. Although the basic right to change sex is described in Lithuanian civil code article 2.27, this article is not considered in force because no specific law governing sex change exists.

Romania

In Romania, it is legal for transgender people to change their first name to reflect their gender, based on personal choice. Since 1996, it is also possible for someone who has gone through gender reassignment surgery to change their legal gender in order to reflect their new (post-operative) biological sex. Transsexuals then have the right to marry in their post-operative sex.

Netherlands

In the Netherlands one can go to court and request a change in gender and birth name on ones birth certificate. With this modification the records of the local municipality are updated, and one can obtain a passport and driver's license with the new name and gender. Moreover, a child can then request an update of the gender indication of their parents to allow a change to their records.

Ireland

In the Republic of Ireland, it is not possible for a transsexual person to alter their birth certificate. A case was taken in the High Court by Dr. Lydia Foy in 2002 which saw her case being turned down as a birth certificate was deemed to be an historical document. It is currently possible for anyone to undertake a change of name either through common usage or through a deed of change of name. Dr. Foy has taken new proceedings to the High Court relying on the decisions of the European Court of Human Rights in the Goodwin and 'I' cases. Her application was heard between 17 and 26 April 2007 and judgment was reserved. Judgment was given in the High Court on 19th October 2007. The Judge held that the Irish state had failed to respect Dr. Foy's rights under Article 8 of the European Convention on Human Rights by not providing any mechanism for her to obtain a new birth certificate in her female gender. He indicated that he would grant a declaration that Irish law in this area was incompatible with the Convention. He also said he would have found that her right to marry under Article 12 of the Convention had been infringed as well if that had been relevant. On 14 February 2008 the Judge finally granted a declaration that sections of the Civil Registration Act, 2004 were incompatible with Article 8 of the Convention. This was the first declaration of incompatibility made under the European Convention of Human Rights Act passed in 2003. The written judgment is so far only available in an uncorrected form. The Government has two months within which to appeal to the Supreme Court. If they do not, the Taoiseach (Prime Minister) must report to the Oireachtas (Parliament) the making of the declaration and will have to indicate what measures his Government proposes to take to comply with Ireland's obligations under the European Convnetion.

In Northern Ireland, the Gender Recognition Act 2004 of the United Kingdom applies, so a name and gender change on one's birth certificate is now possible.

Africa

South Africa

South African courts have accepted the Corbett decision, but New Zealand courts, and more recently an Australian court (see Re Kevin - validity of marriage of transsexual), have rejected it. Some Canadian courts have also accepted the decision, though the law in question appears to vary from province to province.

North America

United States

The United States law on this issue varies from state to state, since the issuance of birth certificates and the recognition of marriages are largely state matters. Several courts have come to the conclusion that sex reassignments are not to be recognized for the purpose of marriage, including courts in Ohio, Texas and New York. Other courts (including courts in Kansas and New Jersey) have recognized the reassignments. Most (almost all) U.S. states permit the name and sex to be changed on a birth certificate, either through amending the existing birth certificate or by issuing a new one. Only Idaho, Ohio and Tennessee refuse to permit a change of sex. Like other states, California will amend birth certificates only for California natives currently living in California. However, unlike other states, postoperative residents of California born outside California may obtain a court-ordered change of name and gender.

12 states and 106 jurisdictions (as of October 2007) including the District of Columbia which feature legislation that prohibit discrimination based on gender identity in employment, housing, and public accommodations. This legislation is similar to protections against sex and racial discrimination.

State Date begun
Minnesota 1993
Rhode Island July 17, 2001
New Mexico 2003
California August 2, 2003
Maine 2005
Illinois 2005
Washington January 2006
New Jersey 2006
Vermont 2007
Oregon 2007
Iowa 2007
Colorado 2007

Hawaii protects against discrimination in housing but not employment or public accomindations. For a complete list of cities and counties, see Non-discrimination Laws

U.S. cases

Transsexualism
The first case to consider transsexualism in the U.S. was Mtr. of Anonymous v. Weiner, 50 Misc. 2d 380, 270 N.Y.S.2d 319 (1966), in which a post-operative transsexual sought from New York City a change of their name and sex on their birth certificate. The New York City Health Department refused to grant the request. The person took the case to court, but the court ruled that granting of the request was not permitted by the New York City and New Jersey M Health Code, which only permitted a change of sex on the birth certificate if an error was made recording it at birth. In the case of Matter of Anonymous, 57 Misc. 2d 813, 293 N.Y.S.2d 834 (1968), a similar request was also denied. However, in that case, and in the case of Matter of Anonymous, 64 Misc. 2d 309, 314 N.Y.S.2d 668 (1970), a request was granted for a change of name. The decision of the court in Weiner was again affirmed in Mtr. of Hartin v. Dir. of Bur. of Recs., 75 Misc. 2d 229, 232, 347 N.Y.S.2d 515 (1973) and Anonymous v. Mellon, 91 Misc. 2d 375, 383, 398 N.Y.S.2d 99 (1977). However, despite this, there can be noted as time progressed an increasing support expressed in judgements by New York courts for permitting changes in birth certificates, even though they still held to do so would require legislative action.

Another important case was Darnell v. Lloyd, 395 F. Supp. 1210 (D. Conn. 1975), where the court found that substantial state interest must be demonstrated to justify refusing to grant a change in sex recorded on a birth certificate.

The first case in the United States which found that post-operative transsexuals could marry in their post-operative sex was the New Jersey case M.T. v. J.T., 140 N.J. Super. 77, 355 A.2d 204, cert. denied 71 N.J. 345 (1976). Here the court expressly considered the English Corbett v. Corbett decision, but rejected its reasoning.

In K. v. Health Division, 277 Or. 371, 560 P.2d 1070 (1977), the Oregon Supreme Court rejected an application for a change of name or sex on the birth certificate of a post-operative transsexual, on the grounds that there was no legislative authority for such a change to be made.

In re Jose Mauricio LOVO-Lara, 23 I&N Dec. 746 (BIA 2005), http://www.usdoj.gov/eoir/vll/intdec/vol23/3512%20.pdf the (Federal) US Dept. of Justice, Board of Immigration Appeals ruled that for purposes of an immigration visa - A marriage between a postoperative transsexual and a person of the opposite sex may be the basis for benefits under ..., where the State in which the marriage occurred recognizes the change in sex of the postoperative transsexual and considers the marriage a valid heterosexual marriage.

In O'Donnabhain v. Commissioner, the United States Tax Court is set to determine whether costs for sex reassignment surgery are tax deductible as medical expenses. The IRS argues that such surgery is cosmetic and not medically necessary.

Discrimination
The courts consistently refused to expand protection against sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2000) to the transgendered. On October 16, 1976, a Supreme Court rejected plaintiff's appeal in sex discrimination case involving termination from teaching job after sex-change operation from a New Jersey school system. In Ulane v. Eastern Airlines Inc. 742 F.2d 1081 (7th Cir. 1984) Karen Ulane, a pilot who was assigned male at birth, underwent sex reassignment surgery to attain typically female characteristics. The Seventh Circuit denied Title VII sex discrimination protection by narrowly interpreting "sex" discrimination as discrimination “against women". The case of Price Waterhouse v. Hopkins 490 U.S. 228 (1989), however, was relied upon to expand the protection of Title VII by prohibiting gender discrimination, which includes sex stereotyping. In that case, a woman who was discriminated against by her employer for being too “masculine" was granted Title VII relief. A gender stereotype is an assumption about how a person should dress and act which could encompass a significant range of transgender behaviour. This potentially significant change in the law was not tested until Smith v. City of Salem 378 F.3d 566, 568 (6th Cir. 2004). Smith, a male to female transsexual, had been employed as a lieutenant in the fire department without incident for seven years. After doctors diagnosed Smith with Gender Identity Disorder (“GID”), she began to experience harassment and retaliation following complaint. She filed Title VII claims of sex discrimination and retaliation, equal protection and due process claims under 42 U.S.C. § 1983, and state law claims of invasion of privacy and civil conspiracy. On appeal, the Price Waterhouse precedent was applied at p574: “[i]t follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.” Chow (2005 at p214) comments that the Sixth Circuit’s holding and reasoning represents a significant victory for transgendered people. By reiterating that discrimination based on both sex and gender expression is forbidden under Title VII, the court steers transgendered jurisprudence in a more expansive direction. But dress codes, which frequently have separate rules based solely on gender, continue. Carroll v. Talman Fed. Savs. & Loan Association, 604 F.2d 1028, 1032 (7th Cir.) 1979, has not been overruled. “So long as [dress codes] and some justification in commonly accepted social norms and are reasonably related to the employer’s business needs, such regulations are not necessarily violations of Title VII even though the standards prescribed differ somewhat for men and women.” It should also be noted that following Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998), same-sex sexual harassment is actionable under Title VII..

Canada

The situation in Canada varies depending upon which province you are in. It is possible to gain recognition in each of them, but with varying requirements.

Asia

Singapore

Singapore has also recently recognized the right of transsexuals to marry in their reassigned sex.

Japan

In July 2003, the parliament of Japan unanimously approved a new law that enables transsexual people to change their legal sexes. The law, effective in 2004, however, has controversial conditions which demand the applicants be both unmarried and childless. On 28 July 2004, Naha Family Court, Okinawa Prefecture, allowed an official sex-change of a transsexual woman, generally thought as the first court approval under the new law.

In May 2005, the Tokyo Metropolitan Government's Transport Authority announced that transsexual people and those "suffering from a gender disorder" will be permitted to ride in designated women-only carriages on its subway lines

South Korea

In South Korea, it is possible for transgender individuals to change their legal genders, although it depends on the decision of the judge for each case. Since the 1990s, however, legal sex change has been approved in most of the cases. The legal system in Korea does not prevent marriage once a person has changed their legal sex.

In 2006, the Supreme Court of Korea ruled that transsexuals have the right to have their legal papers altered to reflect their reassigned sex. A transwoman can be registered, not only as female, but also as being 'born as a woman'.

While same-sex marriage is not approved by South Korean law, a transgender woman obtains the legal status of 'female' automatically when she marries to a man, even if she has previously been a 'male' on papers.

Malaysia

There is no legislation expressly allowing transsexuals to legally change their gender in Malaysia. The relevant legislations are the Births and Deaths Registration Act 1957 and National Registration Act 1959. Therefore judges currently exercise their discretion in interpreting the law and defining the gender. There are conflicting decisions on this matter. There is a case in 2003 where the court allowed a transsexual to change her gender indicated in the identity card, and granted a declaration that she is a female. However, in 2005, in another case, the court refused to amend the gender of a transsexual in the identity card and birth certificate. Both cases applied the United Kingdom case of Corbett v Corbett in defining the gender.

Philippines

The Supreme Court of the Philippines Justice Leonardo Quisumbing on September 12, 2008, allowed Jennifer Cagandahan, 27, to change both his birth certificate, gender and name from Jennifer to Jeff, to male: “We respect respondent’s congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case. In the absence of a law on the matter, the court will not dictate on respondent concerning a matter so innately private as one’s sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to rare medical condition, congenital adrenal hyperplasia. In the absence of evidence that respondent is an ‘incompetent’ and in the absence of evidence to show that classifying respondent as a male will harm other members of society ... the court affirms as valid and justified the respondent’s position and his personal judgment of being a male." Court records showed that - at 6, he had small ovaries; at 13, his ovarian structure was minimized and he had no breasts and did not menstruate. The psychiatrist testified that "he has both male and female sex organs, but was genetically female, and that since his body secreted male hormones, his female organs did not develop normally." The Philippines National Institutes of Health said "people with congenital adrenal hyperplasia lack an enzyme needed by the adrenal gland to make the hormones cortisol and aldosterone. Without these hormones, the body produces more androgen, a type of male sex hormone. This causes male characteristics to appear early in males or inappropriately in the case of females. About 1 in 10,000 to 18,000 children are born with congenital adrenal hyperplasia.

Australia

Birth Certificates

Estelle Asmodelle was Australia's first legal transsexual with the Births, Deaths and Marriages Dept. (NSW Government). As cited by (18th June 1987 - Australian Telegraph Newspaper.) This was the first time in Australian law history that an adult transsexual was permitted to change their birth certificate to a different sex and soon afterwards the passport law also changed allowing transsexuals to be issued passports with the new sex depicted.

Australia is now one of only a few countries where legal status of the new sex following sex affirmation surgery is granted via a new full birth certificate. Birth certificates are within the jurisdiction of the states, whereas marriage and passports are matters for the Commonwealth. All Australian jurisdictions now recognise the affirmed sex of an individual after surgery.

Marriage

Re Kevin - validity of marriage of transsexual ([2001] FamCA 1074) is a groundbreaking judgment of the Family Court of Australia, concerning the right of transsexuals to marry. Kevin (not his birth name), a post-operative female-to-male transsexual, married Jennifer (not her birth name). Kevin had undergone hormonal treatment and sex affirmation surgeries. His sex indicator had been changed on his birth certificate and other legal documentation. The question faced by the court was whether Kevin was a man for the purposes of family law in Australia. English law had decided, in the case of Corbett v Corbett (1971), that sex reassignment would not be recognized for purposes of marriage. Justice Richard Chisholm (the judge in this case) found fault with the logic of this decision and held it did not bind Australian law.

Justice Chisholm stated that, to determine a person's sex for the purpose of the law of marriage, all relevant matters need to be considered, including: the person's biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person's life experiences, including the sex in which he or she is brought up and the person's attitude to it; the person's self-perception as a man or woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex reassignment treatments the person has undergone, and the consequences of such treatment; and the person's biological, psychological and physical characteristics at the time of the marriage, including (if they can be identified) any biological features of the person's brain that are associated with a particular sex.

His Honour stated that it is clear from the Australian authorities that post-operative transsexuals will normally be members of their reassigned sex. Holding that the sex of a person for the purposes of marriage is their sex at the time of the marriage, he found Kevin to be a man within the ordinary, contemporaneous meaning of the word and declared his marriage was therefore valid. The Attorney-General appealed.

The Full Court of the Family Court, upholding the decision at first instance , determined that the reasoning of the Family Division of the UK High Court in W v W, an intersex marriage case, was a correct statement of the law in Australia and that people with transsexualism, like others with intersex conditions, should be able to choose their sex, affirm it and marry as a member of that sex.

Passports

Until recently, transsexual people in Australia were able to be issued an interim passport with their self-identified gender stated upon it, in order to travel overseas for SRS. However, a recent "clarification" by the Minister for foreign affairs and Trade, Mr. Alexander Downer, stated that a person may not have a new passport or interim passport issued without a birth certificate stating their gender. instead they may be issued a "Document of Identity"

A department of Foreign Affairs spokesperson has said; "The department has an obligation to ensure that the national passport reflects the official identity of the bearer and it would be inconsistent ... to continue to issue passports, albeit limited in validity, to persons in a sex other than that shown in the records held by the ... births, deaths and marriages registrar,

Due to the interpretation of the Commonwealth Marriage Act 1961, Birth certificates are not able to be changed where the person is currently married. In the case of homosexual-identified transpeople, to obtain a divorce would require them to perjure themselves by stating that their relationship was irretrievably broken. Due to the aforementioned "clarification" Such people are also unable to be issued a passport, even if they previously obtained an interim passport in order to have SRS.

Grace Abrams appealed the minister's rejection of her application for a permanent passport. Her application with the administrative appeals tribunal was upheald, stating that she was able to validate her identity as a female person, and that her inability to present a female birth certificate due to state legislation was not valid grounds for rejecting her application

This, however, gives rise to the event that Mrs. Abrams is a legally identified woman in a legally recognised marriage with another legal woman

See also

References

Chow, Melinda. (2005). "Smith v. City of Salem: Transgendered Jurisprudence and an Expanding Meaning of Sex Discrimination under Title VII". Harvard Journal of Law & Gender. Vol. 28. Winter. 207.

Transgender Rights. (2006). Edited by Paisley Currah, Richard M. Juang and Shannon Price Minter. Minneapolis: University of Minnesota Press.

Notes

External links

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